66 F.

3d 52

UNITED STATES of America

v.
Manfred DEREWAL, Appellant.
No. 95-1142.

United States Court of Appeals,

Third Circuit.
Argued Aug. 2, 1995.
Decided Sept. 15, 1995.
Sur Petition for Rehearing Oct. 16, 1995.

Stephen Robert LaCheen, George E. Goldstein (argued), Philadelphia,

PA, for appellant.
Robert A. Kauffman (argued), Office of United States Attorney,
Philadelphia, PA, for appellee.
Before: MANSMANN, HUTCHINSON and ROTH, Circuit
Judges.OPINION OF THE COURT
MANSMANN, Circuit Judge.

In this appeal from the district court's order revoking Manfred DeRewal's
probation, we address chiefly DeRewal's primary contention regarding the
tension between the power of the judiciary to act on probation matters and the
executive branch's power governing parole since DeRewal was on parole when
the district court revoked DeRewal's probation that had not yet begun. This is
an issue we specifically reserved in United States v. Camarata, 828 F.2d 974
(3d Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1036, 98 L.Ed.2d 1000
(1988).

We hold that the district court properly exercised its jurisdiction in revoking
DeRewal's probation for pre-probation conduct occurring during a period of
parole. Such judicial action regarding probation does not disturb the executive
branch's authority to control DeRewal's parole.

DeRewal also contends that the conditions of his probation were modified
without a hearing as required by Federal Rule of Criminal Procedure 32.1(b),
that the district court erred in refusing to grant him access to the probation
officer's entire file, and that there was insufficient evidence for the district court
to find a violation of probation. We have considered each of the allegations of
error and, finding them to be without substance, we will affirm the order of the
district court.

I.
4

In March, 1988, Manfred DeRewal was charged with conspiracy to import P2P,
importation of P2P, and attempting to import P2P into the United States from
Costa Rica in violation of 21 U.S.C.A. Secs. 952(a), 960(a)(1), 963 (West
1981) and 18 U.S.C.A. Sec. 2 (West 1969). Following conviction, DeRewal
was sentenced to 10 years of imprisonment followed by a ten year term of
special parole. A five year probationary term was to run consecutively to the
term of special parole.1

On December 17, 1992, DeRewal was released from prison on parole, parole to
run until October 18, 1998. The term of special parole would then run from
1998 until 2008, when the probationary period would begin.

On September 7, 1994, the United States Probation Department filed a

Violation of Probation Petition against DeRewal, alleging that he had violated
those three conditions of probation which required him (1) to answer truthfully
inquiries from and follow the instructions of his probation officer; (2) to refrain
from associating with those engaged in criminal activity or convicted of a
felony; and (3) to refrain from violating any law.

DeRewal's motion to dismiss the petition for lack of jurisdiction was dismissed
and a hearing was held on the merits of the Probation Department's Petition.
DeRewal filed a motion seeking to review his probation file in its entirety.
Following the district court's denial of this motion, the government presented
the testimony of DeRewal's neighbor who had overheard telephone
conversations as a result of an illegal splice into her telephone line. Testimony
was also given by telephone employees, DeRewal's probation officer, and FBI
agents.

At the conclusion of the testimony, the district court found that DeRewal had
violated the terms of his probation and sentenced him to 36 months
imprisonment. This timely appeal followed in which we confront the issue of

judicial power to alter probation during a pre-probation period of parole which

is governed by the authority of the executive branch.
II.
9

In Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955),
the Supreme Court confronted the question of whether a district court has
authority to place a defendant on probation once he has begun to serve the first
in a series of consecutive sentences. The Court cautioned that statutory
authority to grant probation should not be "applied in such a way as to
necessarily overlap the parole and executive clemency provisions of the law"
and should be interpreted "to avoid interference with the parole and clemency
powers of the Executive Board." Affronti, 350 U.S. at 83, 76 S.Ct. at 174. The
Court then concluded, utilizing broad language, that "the probationary power
ceases with respect to all of the sentences composing a single cumulative
sentence immediately upon imprisonment for any part of the cumulative
sentence." Id.

10

In United States v. Williams, 15 F.3d 1356, 1357 (6th Cir.), cert. denied, --U.S. ----, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994), the Court of Appeals for the
Sixth Circuit concluded that "a district court does have authority to revoke
probation for pre-probation conduct, including the pre-probation conduct of a
paroled convict." On facts substantially identical to those presented here, our
sister court of appeals noted that 18 U.S.C. Sec. 3651, applicable to offenses
committed prior to November 1, 1988, unambiguously provides that

11 court may revoke or modify any condition of probation, or may change the
[t]he
period of probation.
12

The court then considered whether a district court's revocation of probation

based upon conduct committed while a defendant was on parole would raise a
separation of powers concern. Finding that no such concern was implicated, the
court analyzed Affronti:

13 Affronti, the Supreme Court held that once a convict has begun serving a
In
custodial sentence, a court may not modify a subsequent custodial sentence into a
probational sentence. The Supreme Court reasoned that such authority would
interfere with the executive's power to make decisions concerning parole and
executive clemency.
14

United States v. Williams, 15 F.3d at 1362. The court emphasized that where
parole is revoked, the logic of Affronti breaks down.

Where a convict's pre-probation conduct prompts a court to revoke a sentence of

15
probation ... the court does not modify an existing custodial sentence. Rather, the
court effectively converts a probationary sentence into a custodial sentence. The
possibility that a probationary sentence would be converted into a custodial sentence
is inherent in the very notion of probation. Furthermore, the conversion of a
probationary sentence into a custodial sentence still leaves the executive free to
administer the converted sentence.... Further, judicial authority to revoke probation
for pre-probation conduct seems especially unlikely to disrupt the balance of power
in cases such as this in which agents of the executive have requested the court to
revoke probation.
16

Id. at 1363-64.

17

We conclude, as did the court in Williams, that neither the statute granting the
district court authority to revoke or modify a period of probation nor the
Supreme Court decision in Affronti suggests that it was error for the district
court to revoke DeRewal's probation. Because "the authority to revoke
probation for pre-probation conduct does not concentrate power in the judiciary
so as to disrupt the balance of power amongst the legislative, executive, and
judicial branches," the rule announced in Affronti is not undermined. Id. The
district court's revocation of probation does not interfere with the ability of the
executive branch to alter DeRewal's parole. The power to act under this factual
scenario is not exclusively vested in the executive branch; parole and probation
are mutually exclusive, respectively controlled by the executive branch and the
judiciary.

18

We note that DeRewal's assertion that the district court lacked jurisdiction to
entertain a Petition for Violation of Probation where DeRewal was on parole
when his probationary term was not to commence until the year 2008 finds
support in the decision of the Court of Appeals for the Fifth Circuit in United
States v. Wright, 744 F.2d 1127 (5th Cir.1984). There, on facts very similar to
those now before us, the court held that the district court has no authority to
revoke probation for conduct committed during a period of parole where the
defendant has been sentenced in the same case to a consecutive term of
probation.

19

Although dealing with different facts,2 Chief Judge Sloviter, the writer of the
lead opinion for the court in Camarata was critical of Wright, and supportive of
the Williams approach. Rejecting Camarata's arguments based on Wright and
Affronti, she found Affronti to be of limited application:

[In Affronti,] the Court stated that it was "concerned with the power to grant
20

supervision of [unexecuted] sentences." It framed the question as to whether it

should "read the statute to mean that courts should be able to suspend the
uncommenced terms of a cumulative sentence after the prisoner has been imprisoned
and entered upon the execution of a prior term?" and answered in the negative.
Affronti did not deal with the district court's power to revoke probation. As Judge
Pollak, the district judge in this case, explained, "to revoke probation is not to pose
the difficulties of overlap which conflicted with the parole and clemency authorities"
since "[r]evoking a probationary term which follows a term of incarceration does not
stop the parole authorities from making such adjustments of the term of incarceration
as they think appropriate."
21

828 F.2d at 979 (citations omitted). We agree with her analysis.

22

We here state our agreement with the analysis of the Court of Appeals for the
Sixth Circuit in Williams where, on analogous facts, it concluded that Affronti
was misapplied in United States v. Wright and should not be read to prohibit
the district court from revoking probation based on pre-probationary conduct.

III.
23

Having resolved that there was no jurisdictional impediment to the district

court's action, we turn next to DeRewal's argument that the conditions of his
probation were amended in violation of Fed.R.Crim.P. 32.1(b). The Conditions
of Probation Nos. 2 and 6 on the Judgment and Commitment Order specified
that DeRewal was to "(2) associate only with law-abiding persons and maintain
reasonable hours; ... [and] (6) follow the probation officer's instructions and
report as directed," but the form that his probation officer required him to sign
stated that "you shall not associate with any persons engaged in criminal
activity, and shall not associate with any persons convicted of a felony unless
granted permission to do so by the probation officer." DeRewal was found to
have violated the latter condition. He objects that the different wording on the
probation form made the applicable condition much more onerous and "added
an entirely different class of person with whom DeRewal was not allowed to
associate."

24

We believe that the distinction between these two conditions is insignificant.

Any violation of the second version would certainly have contravened the first
version as well. We also agree with the district court that the difference in the
language of the two sections "is not a modification or enlargement of the
conditions of a sentence of probation under ... Fed.R.Crim.P. 32.1(b). The
change in the description of the condition clarified the condition but did not
make a substantive change." United States v. DeRewal, No. 88-00098-01, slip

op. at 5-6, 1995 WL 54919 (E.D.Pa. Feb. 9, 1995).

IV.
25

Federal Rule of Criminal Procedure 32.1(a)(2)(B) provides that, at a revocation

hearing, a defendant is entitled to "disclosure of the evidence against him." The
caselaw is in accord. See, e.g., United States v. Guardino, 972 F.2d 682, 689
(6th Cir.1992). Neither the rule nor the caselaw can reasonably be read,
however, to require automatic production of a probation officer's entire file,
even where the officer is a witness. The record before us establishes that
DeRewal was provided with relevant documents from the file and was further
protected by the district court's in camera review. We conclude that the district
court did not err in refusing to order the production of the probation officer's
entire file.V.

26

Lastly, we address DeRewal's contention that the evidence adduced at the

revocation hearing was insufficient to establish a violation of probation. "In
order to revoke probation, it is necessary 'only that the court be reasonably
satisfied that [the probationer] has violated one of the conditions of his
probation.' " United States v. Barnhart, 980 F.2d 219, 223 (3d Cir.1992)
(quoting United States v. Manuszak, 532 F.2d 311, 317 (3d Cir.1976)). Having
reviewed the record before us, we are satisfied that the evidence fully supports
the district court's exercise of its discretion in revoking DeRewal's probation for
the reasons set forth in its February 7, 1995 Memorandum and Order.

VI.
27

We will affirm the district court's order of February 7, 1995 revoking

DeRewal's probation and sentencing him to three years imprisonment.

28

Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,

GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS,
McKEE and SAROKIN, Circuit Judges.

SUR PETITION FOR REHEARING

Oct. 16, 1995
29

The petition for rehearing filed by appellant in the above entitled case having
been submitted to the judges who participated in the decision of this court and
to all other available circuit judges of the circuit in regular active service, and
no judge who concurred in the decision having asked for rehearing, and a

majority of the circuit judges of the circuit in regular active service not having
voted for rehearing by the court in banc, the petition for rehearing is denied.

DeRewal's direct appeal from the judgment of conviction and sentence was
affirmed on October 12, 1989. DeRewal then filed a petition pursuant to 28
U.S.C. Sec. 2255 raising ineffective assistance of counsel and other claims. The
district court denied the petition. On appeal, we affirmed in part, reversed in
part, and remanded the matter to the district court. See United States v.
DeRewal, 10 F.3d 100 (3d Cir.1993) (holding that a defendant is not required to
show "cause and prejudice" with respect to his failure to raise ineffective
assistance of counsel on direct appeal)

Following conviction on several counts of a federal indictment, Camarata was

sentenced to imprisonment and a consecutive term of probation. Prior to
completion of the term of imprisonment, Camarata committed additional
crimes. The district court relied upon these crimes in revoking probation